Lyndon Martin’s appeal delayed

Court unhappy with adjournment request

The Cayman Islands Court of Appeal made it clear on Wednesday that applications for adjournment should not be made lightly.

Martin Lyndon

Martin Lyndon

Justice Geoffrey Vos, who was appointed to the court just last week, said he was extremely unhappy with what was taking place in the case of former MLA Lyndon Martin, whose appeal of convictions and sentences were to have been heard that morning.

Instead, there was discussion of whether his bail should be continued until the appeal is heard. Eventually he was told to return on Monday, 8 December, for further argument on the question.

A jury found Martin guilty in April of three counts of obtaining property by deception involving a total of $1,075. He was sentenced to eight months imprisonment, but bailed pending appeal (Caymanian Compass, 20 July).

On Wednesday, Attorney Ben Tonner applied for adjournment until the court sits again in March. He said the appeal could not be heard until a transcript of the trial was prepared. There was a transcript of the judge’s summing up to the jury and of the verdict, but not the evidence or legal arguments.

Justice Vos asked how it was justifiable to ask for a whole transcript, hundreds of pages long, when the ground of appeal was one line. It seemed to him that the legal argument Mr. Tonner wanted from the trial could be transcribed this week and the appeal be heard next week.

Mr. Tonner indicated he was relying on the Court of Appeal Law, which states that the Clerk of the Grad Court ‘shall procure the transcript of the proceedings at the trial’ after receiving notice of an appeal.

Justice Elliot Mottley asked if Mr. Tonner had considered the Court of Appeal Rules. One rule says an interested party may obtain a copy of the transcript ‘of the whole or of any part’ of the shorthand notes of any trial on payment of two dollars per page.

Mr. Tonner accepted the point but said his understanding was that the transcript would be prepared.

‘What you relied on was common practice rather than the rules,’ Justice Mottley told him.

Justice Vos said Mr. Tonner appeared to assume his application for adjournment would be granted. ‘Parties are not to assume they will be successful,’ he warned. Adjournments disrupt proceedings and scheduling, he said earlier.

Acting Court President Ian Forte agreed. He remarked on the number of occasions he had seen it happen since joining the court in July 2004. He pointed out that Cayman’s Court of Appeal does not sit continuously, only in sessions generally three times per year.

‘I think counsel should know they must be ready,’ he commented. ‘Cases have been taken out of the list almost willy-nilly. That’s not going to happen [any more].’

Mr. Tonner said Mr. Martin was making efforts to instruct a leading counsel from London for the appeal and that counsel would need to see the transcript of the whole trial.

Justice Forte said he had noticed the work of the court being held up several times because appellants wanted counsel from London. ‘You have counsel here of great ability,’ he commented. ‘Why should this court hold up its proceedings to facilitate counsel from overseas?’

He suggested that if overseas counsel were employed, the local attorney who did the trial could instruct him without a transcript.

Mr. Tonner said he had not had the transcript to compile proper grounds for the appeal.

The one ground he did file concerned a Jamaican national, Weldon Shaw, whose statement said he gave $350 to Lyndon Martin for a residency permit.

Mr. Shaw was in Jamaica at the time of the trial and Crown Counsel John Masters had to get the court’s permission to read the statements. Mr. Tonner said the Crown had not provided sufficient reason for the judge to rule that Mr. Shaw’s statements could be read.

The jury found Martin guilty of obtaining the money from Mr. Shaw by deception. Justice Forte asked what this had to do with the other two convictions, relating to monies from Mr. Clint Myrie. Mr. Tonner said he would try to convince the court that the jurors’ decision regarding Mr. Shaw could have affected their decisions on other counts.

The court adjourned this matter until the afternoon so that Registrar Audrey Bodden could find out if a partial transcript could be obtained this week.

She reported that the material requested added up to 250 pages and could not be ready in time.

(Transcripts typically require the court stenographer to listen to the back-up tape of proceedings to check the accuracy of what has been written. In addition, when other cases are referred to, the sources must be researched to see if what was said is a direct quote or paraphrase, as well as for correct spellings and numberings of pages and paragraphs.)

Justice Forte expressed regret that the court’s request could not be acceded to. His impression was that Mr. Tonner required more material than the court had thought.

Mr. Masters noted the only question remaining was bail.

Mr. Tonner said bail should continue because otherwise Mr. Martin would have served a substantial portion of the sentence before the appeal was heard.

If he had to address the question of sentence he would be arguing that the relatively small amount of money involved warranted a non-custodial sentence.

Mr. Masters advised the court that Martin was not a first offender, having two immigration convictions in 2004. He said the new convictions were not in the same category.

Justice Vos suggested adjourning until the court stenographer could provide the judge’s sentencing remarks.